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Cooper v. Kauer

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 20, 2010

TROY COOPER, PLAINTIFF,
v.
KAUER, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. § 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).

Plaintiff's complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). Plaintiff alleges that defendants provided him inadequate medical care in violation of the Eighth Amendment. If these allegations are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. However, plaintiff is advised that the court cannot order service of his complaint on defendants not actually named. Therefore, if plaintiff discovers the identity of the individual identified as "Pharmacist Doe " in his complaint, he should seek leave of the court to amend his complaint to name that individual. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) ("[P]laintiff should be given the opportunity through discovery to identify the unknown defendants."). Plaintiff is also advised that he may amend his pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). Once a defendant has filed an answer, plaintiff may amend a pleading only by leave of court or by written consent of the adverse party. See id.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's April 30, 2010 application to proceed in forma pauperis (Doc. No. 2) is granted;

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith;

3. Service of the complaint is appropriate for the following defendants: (1) Kaur; and (2) Chen.

4. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed April 30, 2010.

5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:

a. The completed, signed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 3 above; and

d. Three copies of the endorsed complaint filed April 30, 2010.

6. Plaintiff shall not attempt to effect service of the complaint on defendants or request a waiver of service of summons from any defendant. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed

one completed summons form;

two completed USM-285 forms; and

three true and exact copies of the complaint filed April 30, 2010.

DATED:.

Plaintiff

20100520

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